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Opinion Contributor

Voter ID laws renew ‘right to vote’ appeal

The Constitution does not grant citizens the “right to vote” and this needs to change, the author says. | AP Photo

The answer is that the Wisconsin courts recognized the affirmative grant of the right to vote under that state’s Constitution, while the Pennsylvania court failed to give its state constitutional provision any independent meaning. The Wisconsin courts explicitly acknowledged that the Wisconsin Constitution grants greater voting protections than the U.S. Constitution; the Pennsylvania court, using an analysis known as “lock stepping,” followed the U.S. Supreme Court’s lead in how to construe the right to vote, ignoring the textual differences between the U.S. Constitution and the Pennsylvania Constitution.

But lock stepping — construing the scope of state constitutional rights as the same as the analogous right under the federal Constitution — makes little sense for something as important as voting rights. First, the U.S. and state constitutions are textually different: The U.S. Constitution does not grant the right to vote, while most state constitutions list the right to vote as an affirmative right for their citizens. Second, the U.S. Constitution explicitly points to state voting qualifications for who may vote for Congress — suggesting that state rules, and not the federal equal protection principle — should define voting rights. Third, the right to vote is the most precious right in our democracy, and it therefore should enjoy the most robust protection possible.

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There are two solutions: Either we need a federal constitutional amendment granting the right to vote, or state courts must avoid the “lock stepping” approach when analyzing restrictions on voting rights, instead recognizing that state constitutional provisions are broader than the federal equality principle.

When Americans enter the voting booth, they exercise the most fundamental and cherished right we possess, demonstrating to the world the promise of democracy and free will. It is time for our legal system to follow suit. Either the U.S. Constitution should explicitly recognize the right to vote as an affirmative, fundamental right that all citizens enjoy, or state courts should respect and enforce the robust grant of the right to vote that state constitutions already confer.

Joshua Douglas is an assistant professor at the University of Kentucky College of Law, specializing in election law.

Readers' Comments (10)

I'm curious, are you championing the rights of "legal"American voters or are you more concerned about the illegal voters that have no business casting a ballot?? With all of your acquired knowledge, how exactly did our forefathers cast their "legal" ballots? Do you know, do you care, or are you some die hard liberal hoping to make a statement?? If you want to make a point to us ignorant conservatives, share your vast knowledge and tell us how our forefathers dealt with this in the past?? Surely there were illegals back then????

Supreme Court has upheld “reasonable” restrictions on the right to vote, so long as the state applies those restrictions “evenly” to all voters. This was the basis of the court’s 2008 decision upholding Indiana’s strict voter identification requirement. ... There are two solutions [ways to prevent requiring ID to vote]: Either we need a federal constitutional amendment granting the right to vote ...

Even by law school prof standards, this guy's grasp of logic is pitiful. He stupidly thinks a U.S. constitutional guarantee of the right to vote would make voter ID laws unconstitutional. The Constitution already has an explicit guarantee of the right to guns, but that in no way prevents state or federal laws requiring an ID to buy a gun.

What a sad example of how mindless conformity to faculty lounge orthodoxy is enough qualification for airheads like this to be hired at law schools.

Oh the hell with all of you and all this security ********. I vote in Pennsylvania and am directly affected by this law. So far as I remember Nixon did not require me to show this ID when I went to vote this maybe the last straw as starting next year I think I have a good excuse not to vote and you can guess what it is. This law caters to these *******s who are professional party politicians so far as I am concerned they all should die as this law is too intrusive. If they don't get rid of it we very well are not voting and maybe they will start finding another way to elect those idiots. Anyone who disagrees should die and go to hell. P.S> Why have the so called conservatives supposedly gotten these laws passed (it was the Republican Party I have a Republican Governor in Pennsylvania, and the the three comments objecting to this law are conservatives who are Republicans I presume, whereas I am a Independent who votes Democratic with a hell of a lot of protests for having to vote for the lessor of two evils. As it seems the Damn Republican Party does not even know its own voters.

Why duplicate effort? You get your picture taken when you get a driver's license, passport or any other form of ID. Just show THAT and everything is fine.

There is a legitimate suggestion that requiring someone to buy ID needed to vote is a poll tax, so I would favor a clause in the law requiring states to issue an official ID at no cost to any adult who has no other approved form of ID.

Iron: Why duplicate effort? You get your picture taken when you get a driver's license, passport or any other form of ID. Just show THAT and everything is fine.============================================================================ Because the effort is on the voter....Many poor do not have a drivers licence or pass port or the necssary documents to get them ! There is no voter fraud in any amount to justify the "VOTER SURPRESSION" in place. Voter ID is for having less voting...

I find it total BS whom say most poor do not have an ID (less than 10% and I bet most are felons) because u can't get your free govt hand outs with out an ID so and 90% of the poor live off of Govt free food, services and/or housing and a ID is required......!

There is no necessary inconsistency between voting rights and requiring identification to vote.

1. There should be a long lead time between the passage of the law and its effectiveness, with much public advertisement of the new requirements. The lead time should not be less than a year. Then the voting assistance groups have the time to help folks obtain their id's.

2. Obtaining a State identification only to vote should not incur costs on the voters. That would be tantamount to charging people to vote.

Preventing fraud is an acceptable public policy. But it should not be onerous to the voters' ability to participate.